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June 18, 2015, Trial News

Tenth Circuit rules Feres doctrine bars birth injury claim

Alyssa E. Lambert

The federal government is immune from liability for the injuries a servicewoman's baby sustained during childbirth due to the negligence of military hospital staff, the Tenth Circuit has held. The court ruled that Feres barred the plaintiff’s claims because the child's in utero injuries were derivative of the mother's injuries.

The Tenth Circuit has held that the federal government is immune from liability for the injuries an active-duty servicewoman's baby sustained during childbirth due to the negligence of military hospital staff. The three-judge panel ruled that the Feres doctrine—which prohibits servicemembers from bringing claims against the government under the Federal Tort Claims Act (FTCA) for injuries incident to their military service—bars the plaintiff's claims because the child’s in utero injuries were derivative of the mother’s injuries. The decision creates a circuit split, and the plaintiff plans to request U.S. Supreme Court review. (Ortiz v. United States, 2015 WL 2330230 (10th Cir. May 15, 2015).)

The FTCA, which generally waives the government’s sovereign immunity in cases alleging federal employees were negligent, contains several legislative and judicial exceptions, one of which the Supreme Court enunciated in Feres v. United States. The crux of the Feres doctrine is the incident-to-service test, which focuses on whether the plaintiff’s injuries arise out of or occur during the course of activity incident to military service.

In 2009, Air Force Capt. Heather Ortiz was admitted to a military hospital on the Fort Carson Army base in Colorado Springs, Colo., for a scheduled C-section. To prevent aspiration of gastric acid during the procedure, a nurse gave Ortiz Zantac, which her medical records indicated she was allergic to. To counteract the allergic reaction, staff gave her Benadryl, which caused her blood pressure to plummet, resulting in hypotension. This caused serious brain trauma to her child, including cerebral palsy.

The child’s father sued the federal government for negligence. He alleges that hospital personnel gave his wife a drug she was allergic to and failed to assess the fetal monitoring strips—a graphical representation of the baby's heart rate—during and after the allergic reaction, which could have prevented the child's injuries.

The government moved to dismiss the case based on the Feres doctrine and stay discovery pending the decision. The district court granted summary judgment, ruling that Feres barred the plaintiff’s claims. The plaintiff appealed.

Although other circuits, and even Supreme Court justices, have harshly criticized the Feres doctrine over the years, the Tenth Circuit said that only the Supreme Court can overrule or modify it, so it was forced to apply Feres with “a degree of regret.” The court used a two-part analysis: First, it examined Feres. Then, it reviewed another Supreme Court case, Stencel Aero Engineering Corp. v. United States, because the injury was to an unborn baby (who is also a third-party civilian).

In Stencel, the Court held that Feres applied to a third-party indemnity action that the manufacturer of an ejection seat brought against the federal government. The ejection seat had injured a servicemember, who had sued the manufacturer and the federal government. The Stencel analysis became known as the genesis test, which focuses on whether the civilian injury originates—either directly or indirectly—from an incident-to-service injury.

Applying Feres and Stencel collectively as an “injury-focused approach,” the court concluded that the child’s injuries were derivative of the mother's injuries: The source of the birth injury was the mother's drop in blood pressure. The plaintiff can overcome Feres only if the child’s injuries are truly separate, the court noted.

Laurie Higginbotham of Austin, Texas, one of the plaintiff’s attorneys, called the decision very troubling. “Applying the Feres bar to a child's birth injury claim takes a bad decision to a new level of unfairness. Children of active-duty mothers have no alternative compensation scheme, and this decision shuts them out of the legal system entirely,” she said. She also pointed out that the outcome of this case would be different if the child's father—rather than mother—had been the one in the military. “Creating a gender-based distinction that singles out children of active-duty mothers and excludes them from the legal system is unconstitutional.”

Judge David Ebel concurred with the majority opinion, arguing that the court should have taken a conduct-focused approach, which would consider only whether the civilian child's birth injury “flowed directly from the military’s immunized conduct toward its pregnant servicemember.” Based on this, Ebel concluded that Feres would still bar the plaintiff’s recovery, because the child’s injuries were the direct result of the military's obstetric care.

“Taking that approach, the concurrence would globally do away with all birth injury claims of military families under Feres—a step that no circuit has ever taken. It lacks any support in either the text of the FTCA or in any Feres jurisprudence,” Higginbotham said.

The decision creates a split with the Fourth, Sixth, Eighth, and Eleventh Circuits, which held that Feres does not bar birth injury claims of children with military mothers. Higginbotham said the plaintiff plans to file a certiorari petition with the Supreme Court. “We are hopeful that, given a clear circuit split and these compelling facts, the Supreme Court will take this opportunity to—at a minimum—make it clear that birth injury claims of military children are not ­Feres-barred,” she said.